State v. Milton

Joseph
A. Foster, attorney general (John J. McCormack, assistant
attorney general, on the brief and orally), for the State.

Lothstein Guerriero, PLLC, of Keene (Richard Guerriero on the
brief and orally), for the defendant.

HICKS,
J.

The
defendant, Thomas Milton, appeals his conviction, following a
jury trial in Superior Court (Smukler, J.), on one
count of second degree murder, one count of assault by a
prisoner, and one count of falsifying physical evidence.
See RSA 630:1-b (2016); RSA 642:9 (2007) (amended
2010); RSA 641:6 (2016). We affirm.

I.
Background

The
relevant facts follow. The charges against the defendant stem
from events occurring on July 26, 2010, at the New Hampshire
State Prison where the defendant and the victim were then
incarcerated. The defendant was a member of a prison gang
known as the Brotherhood of White Warriors (BOWW), and had
been ordered by Frankie Philbrook, a high-ranking member of
BOWW, to assault the victim because Philbrook believed the
victim was a "rat" (i.e., that the victim
had provided incriminating information about Philbrook to
authorities). The relevant indictments allege that the
defendant assaulted the victim by striking him in the head,
and that he, acting in concert with another inmate, caused
the victim's death by repeatedly striking him in the head
and face. The defendant admitted to striking the victim once
in the head, but denied striking him repeatedly thereafter.

Before
trial, the State moved in limine to admit expert
testimony relating to BOWW's existence, organizational
structure, membership process, and culture, as well as
evidence of the defendant's affiliation with the
organization. The defendant filed a partial objection, which
stated that he had "no objection to disclosure to the
jury of his membership in BOWW, " but argued that the
"[a]dmission of evidence regarding BOWW['s]
organizational structure, membership process, and
culture" would violate New Hampshire Rule of Evidence
403. (Quotation omitted.) After a hearing, the trial court
granted the State's motion, in part. In its ruling, the
trial court permitted the State to present expert testimony
relating to BOWW's organizational structure and culture
to "establish a motive for the inexplicable attack on
[the victim], " and to explain "how fear of gang
retaliation would affect the testimony of witnesses, and tend
to make them less cooperative with law enforcement."
However, the ruling prohibited the expert from testifying
"to evidence a jury could readily understand, "
including evidence that BOWW believed the victim
"ratted" on a gang member, that BOWW ordered the
attack, and that the defendant held the position of
"lieutenant" within the organization. The trial
court explained that this evidence "would be admissible
if obtained from a percipient witness, " but that it was
"not expert testimony."

At
trial, the State's expert testified that BOWW's
members, all white males, formed the gang in 2005 to protect
themselves from other gangs at the prison. He explained that
BOWW maintains a paramilitary ranking structure, that its
members generally share a common "white supremacy"
ideology, and that its motto is "God forgives and BOWW
don't." According to the expert, members must abide
by certain rules including following orders under the chain
of command, and not "ratting." He explained that a
member's failure to follow the rules results in a
"violation" and that possible consequences for
violations include "a punch in the ribs, " being
"punch[ed]" by "a couple [of] guys, " or
being "thrown out" of BOWW. He also explained that
there are varying levels of violations, and that a BOWW
member who "rats" would "most likely be kicked
out of the gang, assaulted, or really anything."
Additionally, the State's expert testified that
gang-related cases in the prison are generally difficult to
investigate because people are typically reluctant to
cooperate with investigators, and because victims of
gang-related assaults do not usually report the incident to
prison authorities.

Also at
trial, the defendant presented the testimony of an inmate who
corroborated the defendant's description of events by
testifying that the defendant did not repeatedly strike the
victim. On cross-examination, the State elicited testimony,
over the defendant's relevance objection, that the inmate
had been assaulted by another inmate several months before
testifying at the defendant's trial. The inmate admitted
that his attacker had a BOWW tattoo, and that, during the
assault, his attacker said, "You want to tell on [the
victim]." He agreed that the assault occurred shortly
before a hearing in another criminal case in which the State
planned to call him as a witness. That case did not involve
the defendant, but was related to the July 26, 2010 attack on
the victim.

The
jury found the defendant guilty on all charges, and this
appeal followed.

II.
Analysis

On
appeal, the defendant argues that the trial court erred by
failing to properly limit the introduction of evidence
relating to BOWW. Specifically, he asserts that the following
evidence was inadmissible under New Hampshire Rule of
Evidence 403: (1) "BOWW crimes [in] which [the
defendant] played no role"; (2) BOWW's
organizational rules; and (3) BOWW's retaliation against
witnesses. He contends that, because such evidence was
admitted, he "was tried, in significant part, on
evidence of a prison gang's wide-ranging criminal conduct
which was not fairly attributable to [him] and which unfairly
prejudiced him in the eyes of the jury."

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;As a
threshold matter, the State argues that the defendant waived
his argument related to evidence of BOWW&#39;s organizational
rules. We disagree. Contrary to the State&#39;s contention,
defense counsel did not limit the scope of his objection at
the motion in limine hearing. Rather, when asked
whether the admission of expert testimony to explain
witnesses&#39; reluctance to testify was "the one ruling
[he took] the most issue with, " defense counsel stated,
"that&#39;s about as much of an objection as I&#39;m
going to make beyond . . . what&#39;s in my
pleading." (Emphasis added.) Thus, although the
defendant focused primarily upon a single argument at the
hearing, he did not concede the remaining arguments raised in
his objection. Cf. Milliken v.
Dartmouth-Hitchcock ...

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